Regulators Mull Internet Ad Restrictions For 2018 Midterms

Facebook CEO Mark Zuckerberg recently said that his company would welcome additional rules concerning political advertisement on the internet. Despite civil rights concerns, the move is necessary because he’s “sure someone’s trying” to manipulate the U.S. midterm elections through Facebook and other social media platforms.

Facebook was at the center of controversy earlier this year after a political consulting company improperly accessed sensitive user information. Indeed, Congress is currently considering such regulation, including the bipartisan Honest Ads Act. This measure would apply the television political advertising rules to digital media. However, some question the HAA’s effect. The Internet Research Agency, which is suspected of being a Russian troll, would have been immune from such requirements. Its ads did not support or oppose a particular candidate.

Canadian regulators are experimenting with a tool that gives social media users access to detailed information about the companies which post political advertisements.

Current Advertising Rules

The Federal Elections Commission’s advertising restrictions do not apply to the internet, except in rare cases. These rules require a disclaimer to appear on each ad that gives the name of the organization which paid for the ad, the name of the candidate that approved the message (if applicable), and the address or other contact information for groups that run unauthorized candidate advertisements. That last category includes most PACs, or Political Action Committees.

These rules are quite limited. The FEC also very narrowly defines “electioneering” ads that are subject to the disclaimer requirement. Such advertisements must clearly refer to a particular candidate and air within 60 days of a general election, or 30 days of a primary election.

Other disclaimer rules apply to solicitations for contributions and campaign paraphernalia, like pens or buttons.

Proposed New Regulations

The FEC is already considering a rule which would extend the disclaimer requirement to the internet. Separately, Facebook’s Government Outreach Director Katie Harbath said the company planned to archive political advertisements. The feature would also give users the ability to view financial and demographic data about the advertiser and the advertisement.

Several other measures are working their way through Congress, including the aforementioned Honest Ads Act. However, it is unclear whether any of them have enough Republican support to become law.

The Concern

Political speech, including a paid advertisement, is protected under the First Amendment, largely due to the Supreme Court’s controversial Citizens United v. FEC decision in 2010. As a result, both Congress and federal regulators must tread lightly in this area. But when the Court decided Citizens United, the environment was very different. The Justices might be more inclined to uphold strict regulations in the social media age. Only time will tell.

For better or worse, government regulation affects almost every area of life. For a free consultation with an experienced attorney in New York, contact Napoli Shkolnik PLLC. We are always available to answer your questions.